Thursday, September 22, 2011

"Closure"

The idea that the death penalty could in fact bring closure to victim's families (who are known in the literature as "co-victims") would seem debatable, and indeed there are a few people who have subjected it to academic rigor. The first and perhaps most significant finding is that "closure" as a justification for capital punishment is a relatively new concept. UC Berkeley law professor Frank Zimring found that the media never used the word "closure" in a death penalty context before 1989 (the year, coincidentally, that McPhail was gunned down in a Savannah parking lot). In a University of Louisville study published this year, sociology graduate student Thomas Mowen and his professor Ryan Schroeder tracked the emergence of the argument that the death penalty — preferably with minimal appeals — would bring closure to the families of the victims.

"The term 'closure' wasn't used in any meaningful document until '91 or '92," says Schroeder. "That's when we really saw the move away from arguments about deterrence and cost-savings." As those rationales for the death penalty became discredited, victims and their need for "closure" were pushed to center stage.

There are two problems with that, says University of Miami professor of law Susan Bandes. "First," she says, "there's no psychological concept or syndrome that everyone agreed on called 'closure'", she says. For some people, closure means just finding out who committed the crime. For others, it's knowing why it happened, or answering the "dark questions" of what their loved one's last moments were like (when I asked McPhail about this, she said that the fact that Davis allegedly shot her son once, and then went back a second time to "execute" him, upset her more than any other revelation). For still others, closure might just refer to getting the criminal justice system to react, to show that they are taking the murder seriously.

But even if you could find a common definition of closure as a sort of healing in the grief process, Bandes says that it's unclear that the courts are even the right venue through which to pursue that healing. "It can be very dangerous for the families," she says. "Once you have legislators and judges telling you that there's such thing as closure, then you might believe in it, and then begin to expect that it will happen."

The biggest problem with "closure" as - in the language used here - an "argument" for the death penalty is that closure doesn't necessarily depend on the actual truth of a case or clear proof that the person executed is guilty of the crime. It is only that the mourning families are more or less convinced the killer is being put to death. With all respect to victims' families, they're probably the poorest judges of guilt and innocence in such cases.

To the extent that "closure" becomes part of the death penalty justification is the extent to which the system moves towards something more akin to national sacrificial offerings. In other words, the person executed need not be guilty at all for "closure" to take place (or fail). It's simply that the victim's family must be more or less convinced that it is the actual murderer attached to the gurney.

Besides being in a mental state from which objective evaluations are even more difficult (a state supported by prosecutors), it's also a mental state in which doubt about the guilt of the person put to death by state would be unbearable, a complete lack of closure and an opening of new wounds.

Finally, "closure" undermines the justification of the existence of capital punishment. Because capital punishment cannot be clearly shown to have deterrence effects on a population, the main argument becomes one of restoring moral balance to society by executing a person whose own murderous acts legitimized his own execution. But this is only if the inmate is indeed guilty of the crime. This absolutely must be the case for this argument to have any moral basis. If it is not the case, or if it is not yet clear, then the execution is not an act of retribution on the part of society, but rather an act of state murder.

In the Troy Davis case, from everything we know, Georgia just committed murder.

Talk about missing the point...Closure IS the justification used for the death penalty. Closure FOR the family members. That's it - cut and dry. So this nonsense about family members being the worst judges of closure is entirely overlooking the point.